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Canadian Responses to the Syrian Refugee Crisis: Reflecting on the 1st Year

Join Canadian Lawyers for International Human Rights and the OBA Foundation for Canadian Responses to the Syrian Refugee Crisis: Reflections on the First Year, a panel discussion and reception.

Date: Thursday, November 24, 2016
Time: 5:30 PM to 8:00 PM
Location: Ontario Bar Association, 20 Toronto Street, Toronto

Register here.

Speakers include:

Mario Calla, Executive Director, COSTI Immigrant Services 

Mario J. Calla, BA, MSW, has been the Executive Director of COSTI Immigrant Services since 1987. COSTI is a community service agency that has been providing a broad range of services to immigrants and refugees in the greater Toronto area for the past 64 years. It provides educational, social, and employment services to help all immigrants in the Toronto area attain self-sufficiency in Canadian society.  COSTI has been active in working to help bring and settle Syrian refugees.

Louis Century, Goldblatt Partners

Louis Century is an Associate at Goldblatt Partners has has helped the firm to privately sponsor a Syrian refugee family.  Before joining the firm, he clerked for Justice Richard Wagner at the Supreme Court of Canada.  Louis has held positions at the International Criminal Court working for a defence team, at the Canadian Council for Refugees as a research fellow, and at the Asper Centre for Constitutional Rights working on constitutional appeals. Louis has also conducted refugee status determinations for the United Nations High Commissioner for Refugees in Nairobi.  Louis has also recently joined an advisory group that will be exploring next steps for the Refugee Sponsorship Support Program.

Jacqueline Swaisland, Waldman & Associates

Jacqueline Swaisland is an immigration lawyer and a co-founder and the Toronto coordinator of the Refugee Sponsorship Support Program, a national program that trains lawyers to assist groups to privately sponsor refugees.  The organization has trained over 1300 lawyers in 11 cities who are committed to assisting sponsor groups to fill out private sponsorship applications for refugees for free.  In recognition of her outstanding work with refugees, she was recognized with a CARLA award by the Canadian Association of Refugee Lawyers.

Moderator: Marco Oved

Marco Chown Oved is a reporter on the Star’s foreign desk, with a focus on Europe and Africa.  Oved joined the Star’s city desk in 2012, covering everything from crime to politics, but has taken particular interest in stories involving abuse of power and corruption. Before joining the Star, Oved was a foreign correspondent for the Associated Press in Abidjan, Ivory Coast and worked for Radio France Internationale in Paris.

In 2014, Oved was named the R. James Travers international corresponding fellow and traveled to Burkina Faso, Ghana and Peru to investigate the links between Canadian foreign aid and mining. The resulting articles were nominated for a Canadian Association of Journalists investigative award.

By |October 19th, 2016|Current Events|

April 29, 2016: Join CLAIHR For an Evening of Theatre and Discussion

Join CLAIHR and Nightwood Theatre at the Tarragon Theatre on April 29, 2016 for an evening performance of Refuge, followed by a discussion about the play and Canada’s refugee system with CLAIHR’s Juda Strawczynski and Heather Cohen, and Refuge’s director Kelly Thornton.

CLAIHR Refuge Theatre Night April 29th

 

Tickets can be purchased here.

By |April 12th, 2016|Current Events|

Excluded from Justice? Immigration Detainees in Canada

By Petra Molnar and Stephanie J Silverman

Petra Molnar is a JD Candidate 2016, Faculty of Law, University of Toronto, and will be an articling fellow at the Barbara Schlifer Clinic. Stephanie J Silverman is the 2015 Bora Laskin Fellow in Human Rights Research and a Social Sciences and Humanities Research Council (SSHRC) Postdoctoral Research Fellow at the University of Ottawa.

The migrants’ rights community was rocked by two recent deaths in the Toronto area at two separate immigration detention facilities. These deaths have been shrouded in secrecy and few details have emerged other than brief biographical sketches of the deceased. What we have learned is that the first man was found unconscious and not breathing in his cell in the Toronto East Detention Centre after an apparent suicide. Guards at the Maplehurst Correctional Facility in Milton found the second man six days later in his cell with no vital signs. Both men were awaiting deportation from Canada. An official total of 14 detainees have died while in the custody of Canadian immigration officials since 2000.

Our recent research[1] into the Canadian detention system has found a growing system of incarceration ensnaring more categories of non-citizens than ever before. International human rights law stipulates that immigration detention is a measure of last resort that is non-punitive, non-arbitrary, conducted with regard to due process, and must not sweep up asylum seekers or other vulnerable people. However, although immigration detainees in Canada are entitled to monthly reviews of the reasons for their detentions, there is no express outer time limit, and rights to habeas corpus are extremely limited.[2]

Canadian Immigration Detention System

As we explain in our article, there are three official immigration holding centres (IHCs) in Canada. The Government also subcontracts beds in medium-security provincial jails, such as the aforementioned Toronto East and Maplehurst. The Canada Border Services Agency (CBSA) can detain a person if they suspect that: the person poses a danger to the public, are unlikely to appear for an examination, cannot prove their identity, or are part of an irregular arrival. A member of the Immigration Division (ID) of the Immigration and Refugee Board (IRB) reviews the grounds for detention after 48 hours, then within the next 7 days, and then every subsequent period of 30 days, as per Section 57(1) and 57(2) of the Immigration and Refugee Protection Act. The CBSA claims that 74 per cent of detainees are released within 48 hours, and that 90–95 per cent of asylum applicants are released into the community.[3] However, in 2013–2014, detainees were held on average for more than 3 weeks; as of summer 2015, 38 detainees had been held for between 1 and 2 years, 16 for anywhere between 2 and 5 years, and 4 for more than 5 years. Likewise, in summer 2014, reports showed at least 145 migrants had been detained for more than 6 months.[4]

The legal and policy construction of Canadian immigration detention is a haphazard bricolage of legislation, court rulings, informal norms, and guidance manuals that are all infused with discretion and lack of oversight. This regime has been mostly reactive with little forethought to the potentially tragic effects of this system. Prolonged periods of detention inflict lifelong psychological, physical, emotional, and social damage. Detention often exacerbates mental health issues that many detainees face, such as Post Traumatic Stress Disorder (PTSD), anxiety, and suicidal ideation. It is telling that there are no official screening procedures to prevent the detentions of vulnerable people, such as those with mental health issues, pregnant women, and young children.[5] For example, according to data obtained on March 31, 2016 by the Canadian Council for Refugees, there are at least 82 children in detention that are accompanying a parent as “guests.”[6]

Access to Justice in Immigration Detention

In our recent research, we also identify a series of systematic everyday obstacles that impede access to procedural justice for immigration detainees in Canada. Such obstacles include the arbitrariness of decision-making in detention reviews; the difficulty with gathering new evidence, the standard of proof for detainees, and prohibitive release conditions that collectively diminish the efficacy of monthly reviews of detention sentences; and the overlapping barriers to retaining high-quality legal counsel that include insufficient funding, geographical distancing, and informational hurdles.

A key building block to procedural justice is access to high-quality, affordable legal counsel. Although detainees have a right to be represented in their detention reviews, the government is not obligated to provide counsel. While a recent Canadian Bar Association report[7] and a 2013 Action Committee on Access to Justice in Civil and Family Matters report both detail the difficulties facing marginalized groups of Canadians in obtaining counsel,[8] neither report addresses the plights of non-citizens, let alone those in detention. Yet, legal counsel is found to be the chief determining factor in successful detention bail hearings across national contexts. Advocates in the United States, for example, have been keen to document the deleterious consequences of appearing in immigration court without counsel.[9] The authors of the study determined that “immigrants who are represented by counsel do fare better at every stage of the court process—that is, their cases are more likely to be terminated, they are more likely to seek relief, and they are more likely to obtain the relief they seek.”[10] Similarly, in Canada, effective representation of migrants is key to protecting their rights while in detention.

The structure of detention in Canada systematically impedes access to quality legal counsel for detained migrants. These hurdles include: difficulties with gathering case-relevant evidence from detention; one-way telephone communication out from the IHCs and prisons; unjustified and discretionary transfers between detention sites; and the increasing use of video- and teleconferencing over in-person hearings. Counsel–client meetings also vary arbitrarily across detention facilities: in the Toronto IHC, a glass partition separates visitors and detainees who must rely on a patchy two-way telephone system, but at the Laval (Montreal) IHC they are allowed to mingle in the visiting room. In both provincial prisons and IHCs, access to reliable information on available legal counsel is extremely limited, and not always in a language comprehensible to the detainee. IHC detainees are particularly isolated because there is no Internet and interpreters are made available only at IRB and CBSA proceedings.

Moving Forward?

These and other issues flag ethical and legal concerns about the current state of immigration detention in Canada. There must be a broader debate about whether immigration detention can ever be just. Until that point, however, it is our responsibility to prevent further deaths and long-lasting psychological damage by improving the everyday living conditions and lowering or eliminating access to justice barriers facing detainees in Canada.

[1] Stephanie Silverman and Petra Molnar, “Everyday Injustices: Barriers to Access to Justice for Immigration Detainees in Canada,” Refugee Survey Quarterly 2016: 35 (1): 109-127, http://rsq.oxfordjournals.org/content/35/1/109.abstract

[2] See for example the recent Ontario Court of Appeal case, Chaudhary v Canada (Public Safety and Emergency Preparedness), 2015 ONCA 700 (CanLII.) holding that immigration detainees can apply to the Superior Court of Justice for habeas corpus to challenge their incarceration.

[3] UN High Commissioner for Refugees (UNHCR), Back to Basics: The Right to Liberty and Security of Person and ‘Alternatives to Detention’ of Refugees, Asylum-Seekers, Stateless Persons and Other Migrants, April 2011, PPLA/2011/01.Rev.1, online: http://www.refworld.org/docid/4dc935fd2.html.

[4]Nicholas Keung, “Report alleges ‘political interference’ in migrant detentions,” Toronto Star, 09 June 2014, online: http://www.thestar.com/news/immigration/2014/06/09/report_alleges_political_interference_in_migrant_detentions.html.

[5] Silverman and Molnar, supra note 1.

[6] Canadian Council for Refugees, ‘Immigration Detention Statistics 2015,” March 2016, online: http://ccrweb.ca/sites/ccrweb.ca/files/immigration-detention-statistics-2015.pdf.

[7] The Canadian Bar Association, “Reaching Equal Justice Report: An Invitation to Envision and Act,” November 2013, online: http://www.cba.org/CBA/equaljustice/secure_pdf/EqualJusticeFinalReport-eng.pdf.

[8]Action Committee on Access to Justice in Civil and Family Matters, “Access to Civil and Family Justice: A Roadmap for Change,’ October 2013, online http://www.cfcj-fcjc.org/sites/default/files/docs/2013/AC_Report_English_Final.pdf.

[9] New York Immigrant Representation Study Report: Part II, “Accessing Justice II: A Model for Providing Counsel to New York Immigrants in Removal Proceedings,” 2011, online: http://cardozolawreview.com/content/denovo/NYIRS_ReportII.pdf.

[10] Ingrid V. Eagly and Steven Shafer, “A National Study of Access to Counsel in Immigration Court,” University of Pennsylvania Law Review 2015:164(1), online: http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=9502&context=penn_law_review .

By |April 4th, 2016|Blog|

International Women’s Day: Reflecting on Human Trafficking in Canada: A Distressing Reality

By Andreina Minicozzi

March 8 is International Women’s Day, first recognized in August 1910 at the International Women’s Conference in Denmark. It was proposed by German socialists, Luise Zeits and Clara Zetkin, who sought to acknowledge women workers in America and Europe.[1] The objective of this annual event was to combat violence against vulnerable women and children and to recognize women’s struggles by forming alliances among them both domestically and internationally.[2] Today, International Women’s Day not only celebrates the actions of women throughout history, but also acts as a time of reflection.

In 2016, we must reflect in particular on the impact that human trafficking has on women. Human trafficking is a growing and significant international problem, especially in Canada. Toronto is the “common destination” for human trafficking in Ontario and a “hub for human trafficking routes.”[3] According to a study released by the Alliance Against Modern Slavery, 551 cases involved Ontario as the destination or “transit point” from 2011 to 2013. Other equally alarming highlights from the report are as follows:

  • 62.9% of victims trafficked to, through, or from Ontario were Canadian citizens;
  • 90% of these individuals were female; and
  • 63% of trafficked person were between the ages of 15-24.[4]

In 2010, 71 percent of reported human trafficking cases in Canada were related to sex trafficking and 63 percent of these victims were Canadian citizens.[5] Toronto police have advised that approximately 20 percent of victims of sex trafficking are Indigenous women, suggesting that this may be connected to their high rates of disappearance and death.[6]

While countries like Sweden and Belgium have been proactively combating and prosecuting human trafficking for decades,[7] Canada’s response has been “lethargic.”[8] Human trafficking was only registered as an offence in the Criminal Code in 2005.[9] Nevertheless, Canada has been working to improve, signing onto several international treaties[10] and instituting legislative reform.[11] In addition, in 2012, the government articulated a “4-P” action plan to combat human trafficking, consisting of Prevention, Protection, Prosecution, and Partnership. This federal anti-trafficking strategy coordinated with that of the provinces.[12] However, what is still missing is protection for survivors.

In recent years, Canada’s approach to human trafficking has focused on prosecuting the perpetrators. According to the RCMP, as of January 2015, 85 convictions were secured in cases of human trafficking, resulting in 151 individuals being convicted of human trafficking-related offences.[13] What Canada needs now is an action plan aimed at assisting survivors with housing, counselling, and financial support, as well as comprehensive training for law enforcement and the public.

Human trafficking is a form of slave labour.[14] It is not only illegal, but violates human dignity. If the Canadian government is to commit to helping victims of human trafficking, it must adopt a more holistic approach to combat human trafficking. The first step is to create an action plan that not only punishes the perpetrators, but, more importantly, provides support services to survivors recovering from their fear and trauma. Premier Kathleen Wynne has acknowledged that Ontario has fallen behind in the fight against human trafficking and needs more coordination of information and support for victims.[15] In the words of Inspector Joanna Beaven-Desjardins: “This is a Toronto problem, an Ontario problem and a Canada problem. Everyone thinks it’s not happening here, but it is.”[16] The Ontario government is expected to launch a comprehensive action plan to combat human trafficking in June, 2016. Hopefully this action plan will revise legislation, fund service centers providing survivors with shelter, psychological, legal, medical and social assistance, provide educational services to law enforcement and the public, and provide greater funding for ongoing analysis and research across Canada. This International Women’s Day, let us remember those women who survive the indignities of human trafficking by advocating for their support.

[1] T Kaplan, “On the Socialist Origins of International Women’s Day” (1985) 11:1 Feminist Studies.

[2] United Nations Women Watch, History of International Women’s Day (2015), online: <http://www.un.org/womenwatch/feature/iwd/history.html>.

[3] CBC News, Toronto a ‘Hub’ for Human Trafficking: Report Says (14 June 2014), online: <http://www.cbc.ca/news/canada/toronto/toronto-a-hub-for-human-trafficking-report-says-1.2675941>.

[4] Alliance Against Modern Slavery, The Incident of Human Trafficking in Ontario (2014) at 7, online: <http://www.allianceagainstmodernslavery.org/sites/default/files/AAMS+-+Research+Report+-+2014.compressed.pdf> [Alliance Against Modern Slavery].

[5] Ibid at 9.

[6] K Blaze & T Grant, “Ontario Government to Unveil Strategy to Tackle Human Trafficking” The Globe and Mail (12 February 2016), online: <http://www.theglobeandmail.com/news/national/ontario-government-to-unveil-strategy-to-tackle-human-trafficking/article28740329/>.

[7] See Belgium and Sweden as leaders for combatting human trafficking: Center for Equal Opportunities and Opposition to Racism (CEOOR) Belgium, Trafficking and Smuggling of Human Beings: Preface & Part I: An Integral evaluation of Policy in the fight against trafficking in human beings, report 2007 (2008); A Gould, “The Criminalization of Buying Sex: The Politics of Prostitution in Sweden” (2001) 30:03 Journal of Social Policy.

[8]  B Perrin, Invisible Chains: Canada’s Underground World of Human Trafficking (Toronto: Viking Canada, 2010) at xi [Perrin, “Invisible Chains”].

[9] Perrin, “Invisible Chains”, supra note 7 at xi; Bill C-49: An Act to Amend the Criminal Code (Trafficking in Persons, online: <http://www.lop.parl.gc.ca/About/Parliament/LegislativeSummaries/bills_ls.asp?ls=C49&Parl=38&Ses=1>.

[10] Notably the United Nations Convention Against Transnational Organized Crime, the Protocol Against the Smuggling of Migrants by Land, Sea and Air, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children and the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (www.un.org).

[11] Such as: (a) Bill C-49: An Act to Amend the Criminal Code (Trafficking in Persons), which came into force in 2005 creating human trafficking as a crime; (b) Bill C-11: The Immigration and Refugee Protection Act (the IRPA), which came into force in 2001 defining human trafficking and smuggling as a distinct offence; (c) Bill S-223: The Victims of Human Trafficking Protection Act, which came into force in 2009 to amend the IRPA and include the victims in the definition of human trafficking (this amendment provides victims to stay in Canada for one hundred and eighty days with open access to health care services and counseling, but no other services are mentioned); and (d) Bill C-268: An Act to Amend the Criminal Code, which came into force in 2010 launching a mandatory five-year minimum sentence for those who are convicted of trafficking of persons.

[12] Public Safety Canada, National Action Plan to Combat Human Trafficking (2012), online: <https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/ntnl-ctn-pln-cmbt/index-eng.aspx#toc-02>.

[13] Royal Canadian Mountain Police, Human Trafficking National Coordination Centre (2015), online: <http://www.rcmp-grc.gc.ca/ht-tp/index-eng.htm>.

[14] A Agathangelou, The Global Political Economy of Sex: Desire, Violence and Insecurity in Mediterranean Nation States (New York: Palgrave/MacMillan, 2006) at 42-43.

[15] Queen’s Park, “Ontario in ‘Drastic Need’ of Tackling Sex Trafficking, Wynne Says” The Star (14 December 2015), online: <http://www.thestar.com/news/queenspark/2015/12/14/ontario-in-drastic-need-of-tackling-sex-trafficking-wynne-says.html>.

[16] Ibid.

By |March 4th, 2016|Blog|

Celebrating the Ten Year Anniversary of the Responsibility to Protect: Battling WWII Global Displacement Rates with an Emphasis on Implementation

By Heather Cohen

Tomorrow marks the celebration of the ten year anniversary of the Responsibility to Protect (R2P). At the United Nations, the President of the General Assembly (PGA) will lead a thematic panel discussion from 10:00 a.m. to 1:00 p.m. EST in the Trusteeship Council Chamber. For those of you who will not be in New York, you can tune into the live webcast here.

The event brings together leaders and eminent experts involved in the creation, development, and implementation of the World Summit commitment. Panelists will reflect on the progress made to date, current and emerging challenges, and opportunities to accelerate implementation. Member States and observers will have the opportunity to ask questions and make brief comments from the floor.

From the International Coalition for the Responsibility to Protect:

The adoption of the responsibility to protect at the 2005 World Summit represented a significant step towards realizing the international community’s commitment to end the most horrific forms of violence and persecution. Member States affirmed their primary responsibility to protect their own populations from genocide, war crimes, ethnic cleansing and crimes against humanity and accepted a collective responsibility to assist each other in fulfilling this responsibility. They also declared their preparedness to take timely and decisive action, in accordance with the United Nations Charter and in cooperation with relevant regional organizations as appropriate, when national authorities manifestly fail to protect their populations from these four crimes and violations.

Significant progress has been made during the past decade in elaborating this commitment. The Secretary-General developed a framework for implementation based on three mutually reinforcing pillars, which provides guidance on how States can best protect their populations (Pillar I), assist and encourage each other to uphold their responsibility to protect (Pillar II), and work collectively to ensure timely and decisive response (Pillar III).

Member States have also devoted considerable attention to the responsibility to protect. Since 2009, the General Assembly has adopted a resolution, held a formal debate, and convened six annual informal interactive dialogues. The Security Council has adopted more than thirty resolutions and Presidential Statements that explicitly reference the responsibility to protect. This body has also held an Arria formula meeting on the responsibility to protect. The Human Rights Council has included the principle in fourteen resolutions, covering both thematic and country-specific topics. At the regional level, the African Commission on Human and Peoples’ Rights has adopted a resolution on strengthening the responsibility to protect in Africa and the European Union has continuously supported the responsibility to protect and its operationalization.

This extensive consideration has contributed to the development of a consensus on core aspects of the responsibility to protect. Member States agree on the need to prioritize prevention, to utilize a full range of diplomatic, political, and humanitarian measures when addressing situations that feature the four crimes and violations, to consider military force only as a last resort, and to ensure that implementation of the responsibility to protect is in accordance with the United Nations Charter and other established principles of international law.

The past decade has also witnessed growing commitment to transforming the principle into practice. International engagement in cases like Cote d’Ivoire, Guinea, Kenya and Kyrgyzstan successfully mitigated the risks of genocide, war crimes, crimes against humanity and ethnic cleansing, demonstrating that the collective weight of the international community can make a difference. The responsibility to protect has also spurred the development of new institutional capacity, including global, regional, and sub-regional mechanisms dedicated to the prevention of these crimes and violations. By the end of 2015, fifty one Member States and the European Union had appointed focal points for the responsibility to protect.

Despite this progress, urgent challenges remain. Acts that may constitute genocide, war crimes, ethnic cleansing and crimes against humanity are currently occurring in far too many crises. The world has also witnessed the alarming rise of non-State armed groups that seek to spread violent extremist ideologies and are brazenly perpetrating atrocity crimes. These situations have created protection challenges of a staggering scale and produced widespread humanitarian crises, including a global migration and refugee crisis. These challenges have also stretched the ability of the international community to generate timely and decisive collective responses. The initiative by France and Mexico on restraint on the use of the veto, the Accountability, Coherence and Transparency (ACT) Group Code of Conduct, and similar proposals by the Elders have all encouraged Member States to refrain from taking action that either hinders or delays robust international responses to genocide, war crimes, ethnic cleansing, and crimes against humanity.

In more general terms, not all Member States have become party to the international conventions that set out the legal framework for the prevention and punishment of the crimes specified by the responsibility to protect, including the Convention on the Prevention and Punishment of the Crime of Genocide, the Geneva Conventions and the Rome Statute of the International Criminal Court. The Secretary-General and President of the International Committee of the Red Cross have also recently drawn attention to an alarming decline in respect for international humanitarian and human rights law, particularly in situations where national authorities have argued that exceptional security threats or political crises justify temporary abrogation from their legal obligations.

Given the ongoing occurrence of these grave international crimes and in light of the progress made over the past decade, it is clear that the responsibility to protect remains a vital and enduring commitment. As Secretary-General Ban Ki-moon has noted, it “offers an alternative to indifference and fatalism” and represents a “milestone in transforming international concern about people facing mortal danger into meaningful response.” The challenge now facing the international community is both practical and political: how to best uphold its responsibility to protect populations from genocide, war crimes, ethnic cleansing, and crimes against humanity by accelerating implementation.

Ten years since the universal adoption of R2P, it remains a vital and enduring commitment, but the next decade must be about moving from commitment to implementation. Partnerships for prevention will be key and CLAIHR is proud to be a member of the International Coalition for the Responsibility to Protect. In the words of the PGA, “[a]ll of us, at the United Nations and beyond, have responsibility to take greater steps to promote tolerance, human rights, and human dignity.”

By |February 25th, 2016|Blog|

Day of the Endangered Lawyer: Honouring the Brave

January 26, 2016 @ 5:00 pm – 7:30 pm

Day of the endangered lawyer

The Day of the Endangered Lawyer, marked on January 24th of each year, is a time to reflect on the plight of lawyers around the world, who risk harassment, persecution and injury as they work to protect the rights of those who need it most.

On January 26, 2016, theLaw Society and Canadian Lawyers for International Human Rights (CLAIHR) held a special event honouring our colleagues, and calling for the safe and unobstructed practice of law around the world.

By |December 15th, 2015|Current Events|

International Day for the Elimination of Violence Against Women 2015

By Jessica Mank

The United Nations has designated November 25 as the International Day for the Elimination of Violence Against Women. The day recognizes women around the world who are subject to rape, domestic abuse, and other forms of violence. [1] This day also marks the start of the White Ribbon Campaign (men against violence against women) in Canada. In addition to raising awareness, one of the goals of this day is to highlight that violence against women and girls is not inevitable; prevention is possible and essential.

On the international stage, Canada has supported resolutions calling for the elimination of violence and women. For instance, Canada’s work at the United Nations has supported the development of the Declaration on the Elimination of Violence against Women and the mandate for a UN Special Rapporteur on Violence against Women, its Causes and Consequences. At home, the Government of Canada advances a plan of action with undertakings in prevention, protection and prosecution. To read more about the Government of Canada’s general strategy to eliminate violence against women, click here.

With the recent culmination of this year’s federal election, Prime Minister Justin Trudeau is now faced with the challenge of implementing the reforms he pledged during his campaign, including those for the prevention of domestic violence and sexual assault. Prime Minister Trudeau has announced the launch of a national public inquiry into missing and murdered Indigenous women in Canada by summer 2016. Other policies promised in the Prime Minister’s electoral platform include developing a federal gender violence action plan, increasing investments in growing and maintaining Canada’s network of shelters and transition houses, and establishing a tougher stance on intimate partner violence. [2] The new government has also spoken out against Bill C-36. [3]

Missing and Murdered Indigenous Women

Nearly 1,200 Indigenous women were murdered or went missing between 1980 and 2012, according to an RCMP report issued in May 2014. A 2015 update has since been released including statistics and analysis on new cases of missing and murdered Indigenous women that have occurred since then. The update also addresses the initiatives and preventative developments the RCMP has taken in meeting the “Next Steps” outlined in the 2014 Overview.

The previous government did not undertake a federal inquiry into missing and murdered Indigenous women. Part of the action taken by the previous government was extending the Canadian Human Rights Act to cover Indigenous peoples on reserves, launching an RCMP database of missing persons and unidentified remains intended to help police services across the country investigate unsolved disappearances and suspected homicides, and toughening laws related to violent crime. [6]

Craig Benjamin, campaigner for the human rights of Indigenous peoples at Amnesty International Canada, says its time to move past “simplistic explanations,” such as attributing the phenomenon to crime. “We have to get to the point of understanding the violence is far more pervasive, that it has multiple causes and that it does in fact have deep roots in our society and the relationships between aboriginal and non-aboriginal people.” [7]

At this point, Indigenous and Northern Affairs Minister Carolyn Bennett has announced that Prime Minister Trudeau expects to launch pre-inquiry consultations with families, civil society groups and other stakeholders in the next few weeks regarding the national inquiry on missing and murdered Indigenous women in Canada. The government plans to make an announcement on its findings in early December 2015. [8]

Domestic Abuse

In January 2007, the United Nations General Assembly adopted a resolution that called for National Action Plans to end violence against women. The resolution provides that all states should adopt National Action Plans in order to address gaps in current policies, programs and services, to involve various women’s organizations in identifying the necessary solutions, and to ensure accountability in delivery. [9]

Trudeau has pledged to develop and implement a comprehensive federal gender violence strategy and action plan, though it is not yet clear what this plan will look like. His government has also pledged to increase investments in growing and maintaining Canada’s network of shelters and transition houses as part of a broader investment in social infrastructure, and to amend the Criminal Code to reverse onus on bail for those with previous convictions of intimate partner violence. [10]

The UN resolution recognizes that violence against women is rooted in historically unequal power relations between men and women and urges states to take action to eliminate all forms of violence against women by means of a more “systemic, comprehensive, multisectoral and sustained approach, adequately supported and facilitated by strong institutional mechanisms and financing.” [11]

In its 2013 report, the Canadian Network of Women’s Shelters and Transition Houses made the case for a Canadian National Action Plan in Violence Against Women, noting:

  • The federal government does not currently identify women as an at-risk population in terms of partner violence or sexual assault.
  • Focus at the federal level is on gender-neutral victims of crime and family violence.
  • Federal initiatives offering support and services to victims of violence against women maintain gender neutrality
  • There are many needs that remain unmet by the traditional justice system, social services, and health care system. [12]

The report states that some of the most pressing issues for victims of domestic violence include the financial impact of crime and violence:

  • Many women living with abuse cannot afford to escape the violence and, for economic reasons, may be forced to remain in homes with violent partners.
  • Women’s shelters often suffer from inadequate funding to meet the demand in communities for women and their children.
  • There a is a lack of safe, affordable community housing for those fleeing violence. [13]
  • Victims who require mental health support to deal with the trauma they have suffered must often seek help at their own expense.

Sex Work and Bill C-36

In December 2013, the Supreme Court of Canada struck down Canada’s prostitution laws. The court held that the provisions violated the Charter by threatening sex workers’ rights to life, liberty and security of the person. Significantly, critics of Bill C-36 argue that the new bill largely recreates the problems in Bedford and actually limits the safe ways for sex-trade work. Trudeau and the Liberal Party voted against Bill C-36, and have spoken to repealing it while in office. [15]

In Bedford the SCC acknowledged that prostitutes in Canada face a high risk of physical violence, and held that ss. 210, 212(1)(j) and 213(1)(c) not only deprived applicants of their liberty in light of the availability of imprisonment as a sanction, but also made any security enhancing actions or methods illegal.

Evidence demonstrated that working in-call is the safest way to sell sex, yet those who attempted to increase their level of safety by working in-call faced criminal sanction. Out-call work may be made less dangerous if a prostitute is allowed to hire a bodyguard, but these business relationships were illegal. The law prohibited street prostitutes, largely the most vulnerable prostitutes, from screening clients at an early stage in the transaction, putting them at an increased risk of violence. [16]

Bill C-36 criminalizes the sale of sexual services in public spaces where persons under the age of 18 could be present. The act also makes it illegal for a person to get a “material benefit” from the sale of sexual services by anyone other than themselves. The enacting federal government maintained that the intention of the bill was to target johns, pimps and traffickers, but critics warn that the bill criminalizes prostitution and its effect will be placing sex workers in jail. [17]

Prior to being elected, Trudeau campaigned on repealing Bill C-36. It is unclear what his government will propose in its place.

Will Trudeau make an impact on the elimination of violence against women?  

Questions remain as to whether Trudeau’s government will be able to deliver on campaign promises to bring reform to the issue of violence against women, and also as to what these reforms will look like. The selection of a gender-equal cabinet signifies a commitment to change and diversity, and holding a majority government will certainly assist the Liberals in implementing reform. However, it also means that expectations for reform remain high. [18]

So far it is clear that the new government is making the national inquiry into missing and murdered Indigenous women one of its first priorities. How quickly this inquiry will materialize and whether it will lead to more purposive action on the part of the federal government remains uncertain.

No timelines have yet been given to a National Action Plan to end violence against women, or to addressing Bill C-36. It regard to the former, it is unclear whether such a National Action Plan will respond to the areas identified in the Canadian Network of Women’s Shelters and Transition Houses’ 2013 report on violence against women.

As to Bill C-36, Pivot, a legal group that helped fight for sex workers’ rights at the SCC has recently stated they will launch a Constitutional challenge if the Liberal government does not act immediately to repeal the bill. [19] Justice Minister Jody Wilson-Raybould recently commented that the government would look at possible changes to Bill C-36. She stated, “we’ve had some preliminary discussions around the Bedford decision and how we approach it more broadly, and . . . that is going to involve having substantive discussions with people who are fundamentally impacted by this. And that’s something that we’re definitely going to look into and have further to say on that.”[20]

 

 

By |November 25th, 2015|Blog|

Re-Claiming The Right-To-Work

Come celebrate International Human Rights Day with CLAIHR and friends:

RE-CLAIMING THE RIGHT TO WORK:

LABOUR RIGHTS AS HUMAN RIGHTS IN THE 21ST CENTURY

DECEMBER 10, 2015

In recent years, the phrase “right to work” has come to be synonymous with a right-wing agenda in the United States to undermine the trade union movement by prohibiting union security agreements, restricting the payment of union dues, and weakening the economic power of unions. Ironically, far from providing a general guarantee of employment to people seeking work, so-called “right-to-work” laws restrict freedom of association by limiting the kinds of contractual agreements unions can make with employers and, in many cases, have resulted in lower wages and benefits for workers.

This event, co-sponsored by Canadian Lawyers for International Human Rights (CLAIHR), the Centre for Labour Management Relations, Faraday Law, and Goldblatt Partners, seeks to re-claim the “right to work” by re-framing work as a public good, rather than a commodity. Such a shift has far-reaching implications:

  • If the right to work is a human right, what does this mean for the right of workers to participate in productive activities and to obtain an adequate standard of living?
  • What are the implications for national and international regulatory systems, as well as transnational migration?
  • How can such a shift help organized labour and non-unionized workers to respond to growing conditions of precarity and the erosion of decent work?

We will explore these questions, and more, at a panel discussion of trade unionists, workers’ activists, and academics.
Panelists:

Moderator:

 

The event is FREE.
Come learn and share 
your thoughts.

Light snacks & refreshments will be served.

 

Date: Thursday, December 10, 2015

Time: 05:30 PM – 07:30 PM

Location: TRS Commons (1-150), 7th Floor, Ted Rogers School of Management, 55 Dundas St. W., Toronto, ON

 

 

Register here.
By |October 22nd, 2015|Past Events|

Philippe Kirsch Institute Event to Launch its International Criminal Law Certificate

On October 2nd, our friends at the Philippe Kirsch Institute will be launching its online International Criminal Law (ICL) Certificate with an in-person event featuring war crimes expert Dr. Joseph Rikhof, Robert Petit and University of Ottawa Professors Jennifer Bond and Timothy Radcliffe.

Event details are as follows:

 

Date: October 2, 2015, 10am-4pm
Location: 120 University Pvt, Room 4004, 4th floor, Ottawa
Price: 

  • Regular price: $400
  • Registered charities use Promo Code CharityICL at checkout for a price of: $180
  • Students use Promo Code StudentICL at checkout for a price of: $100

Morning agenda:

10:00 a.m. – 10:05 a.m. – Welcome remarks
10:05 – 10:45 a.m. – Overview of ICL around the world in both criminal and refugee proceedings
10:45 – 11:25 a.m. – ICL in Canadian criminal law
11:25 – 12:15 p.m. – The link between international criminal law and refugee law

Lunch – 12:15 – 1:00pm

Afternoon agenda:

1:00 – 1:45 p.m. – Recap of morning session and Q&A
1:45 – 3:50 p.m. – Interactive session

  • 1:45 – 1:55 p.m.

o   Regroup participants in teams of 3-4 people
o   Handout of short scenario (incorporating all three topics of morning lectures)
o   Assign roles (such as prosecutor and defence counsel) and explain assignment

  • 1:55 – 2:25 p.m. – Break for teams to discuss
  • 2:25 p.m. – 3:45 p.m. – Discussion moderated by Diana with engaged discussion with the panelists.

3:45 p.m. – 4:00 p.m – Closing remarks

You can learn more about the event and the ICL Certificate at http://www.kirschinstitute.ca.

 

By |September 29th, 2015|Blog|

Reflections on the UN Human Rights Committee’s Review of Canada’s Compliance with the ICCPR

By Lara Koerner Yeo

In early July, for the first time in ten years, the Human Rights Committee (the “Committee”) reviewed Canada’s compliance with the International Covenant on Civil and Political Rights (the “ICCPR”).

The Committee’s observations released on July 23rd, serve as the only United Nations treaty body review of the 2006-2015 period.[1] Leading into the election season, the observations are timely and constitute an important indication of key human rights issues that warrant domestic action.

The Committee discussed Canada’s reluctance to comply with the interim measures of the Committee under the First Optional Protocol to the ICCPR (the “OP-ICCPR”). In response to the Committee’s questions, the Canadian delegation advised that interim measures are not binding.[2] The delegation took the position that while Canada would consider the Committee’s interim measures, it cannot always agree with them, in which case it will not act on them.[3]

Canada’s response runs counter to General Comment 33 of the Committee (“GC33”). GC33 outlines that a State’s failure to comply with interim measures is incompatible with a State’s obligation to respect and act in good faith in the individual communication procedure under the Optional Protocol.[4] In short, if a State does not comply with Committee interim measures, the State is engaging in the Optional Protocol procedure in bad faith.

While Canada has a record of acceding to interim measures, in recent years this has changed. In 2011, for example, the Committee submitted an interim measure request to Canada that was not followed.[5] Canada claimed that there was no obligation to accede to the request because federal government officials received it after the claimant had been deported.[6] The Committee, in its response, noted that just as Canada has the capacity to deport individuals, so too does it have the capacity to return the deported.[7] It found that deporting the claimant had violated his Article 7 rights under the ICCPR.[8] Canada has yet to arrange for the claimant’s return.[9] There are other cases in the last two years where Canada has not acceded to interim measure requests by the Committee and the Committee against Torture.[10] In one instance, a claimant is now in hiding in Canada after the State took action to deport him irrespective of a Committee interim measure request that he not be deported.[11]

This lack of respect for interim measures indicates that, at least since 2011, Canada has engaged with the Committee in bad faith. The Committee’s observations urge Canada to “reconsider its position in relation to Views and Interim measures,” thereby complying with GC33.[12]

General Comment No. 31 (“GC31”) sets out a guiding principle and paradigm underpinning the Committee’s periodic reviews of States’ compliance with the ICCPR. The Comment clarifies that States must act in good faith when giving effect to the ICCPR.[13] It also articulates that States party to the ICCPR are under a general obligation to ensure the civil and political rights of all individuals in a State’s territory and subject to its jurisdiction.[14] Thus, complying with the ICCPR requires States to create a mechanism to monitor domestic implementation of human rights law, as well as realize a process of state response to and compliance with the recommendations and interim measures of UN treaty bodies.

There is no effective accountability mechanism to ensure that Canada complies with its international human rights obligations. While the issue of implementation was not specifically picked up by the Committee in its most current observations, numerous civil society groups recognize that implementation continues to be an overarching concern.[15] Canada’s failure to implement a transparent, accountable implementation mechanism suggests a lack of respect for international human rights law and an unwillingness to improve compliance with the law and UN treaty body recommendations.

Many of the issues the Committee highlighted as principal matters of concern are recent developments in Canada, including the crackdown on civil society dissent and evidence-based human rights advocacy.[16] The Committee also took issue with Bill C-51 and the enhanced powers of the Canadian Security Intelligence Service, failures to regulate Canadian mining companies operating abroad, excessive use of police force, insufficient independent accountability mechanisms to investigate allegations of police misconduct, indefinite detention of irregular migrants, and cuts to health care for irregular migrants and refugees.[17]

Other issues recognized by the Committee are longstanding and attributed in great part to Canada’s history of colonial displacement of Indigenous peoples and the expropriation of their lands. In fact, two of the three priority issue areas Canada is asked to report on within a year centre on Indigenous peoples, namely, the murders and disappearances of Indigenous women and girls as well as Indigenous lands and titles.[18]

In the review meetings, Canada received multiple questions about its response to missing and murdered Indigenous women and girls. The government responded by referring to the 2014 and 2015 RCMP Operational Overview reports on the subject, emphasizing the rate of violence perpetrated by Indigenous men against Indigenous women, as well as the number of Indigenous women who were intoxicated at their time of death.[19] The RCMP data is not comprehensive and the government’s choice of statistics downplays its legal responsibility, focusing instead on the tired game of victim- and Indigenous community-blaming.[20]

The Committee recommends Canada conduct a national inquiry, adding its voice to other UN actors, including the Special Rapporteur on the Rights of Indigenous Peoples and the Committee on the Elimination of Discrimination against Women (“CEDAW”).[21] In a March 2015 report on the murders and disappearances, CEDAW found Canada to be in violation of the Convention on the Elimination of All Forms of Discrimination against Women, including Articles 2, 3, 5 and 14.[22] Canada was last reviewed by CEDAW in 2008 and has an upcoming review in late 2016.

In response to a Committee question about on-going sex discrimination in the Indian Act,[23] the government replied that it was committed to an “incremental approach” to reform and, without noting a specific name or title, referenced a government special rapporteur as evidence of ongoing state action.[24]

There are fundamental problems with the government’s response in this regard. Firstly, as Sharon McIvor, who launched the first case to be decided in Court on this matter, McIvor v Canada,[25] eloquently stated in her remarks to the Committee:

There are many things that Canada should consult Aboriginal communities about. Continued Indian Act sex discrimination is not one of them. The right to be free from legislated discrimination by Canada is a non-negotiable right of Aboriginal women.[26]

By accepting an incremental approach, there is no guarantee when, if ever, legislated sex-discrimination will be eradicated from the Act. Canada’s response to this issue is antithetical to its domestic and international gender equality obligations. The use of an incremental approach as justification to the Committee is an embarrassment.

Secondly, the special rapporteur referenced by the government is Douglas Eyford, Ministerial Special Representative on Renewing the Comprehensive Land Claims Policy. Eyford’s rapporteur work and report focus is on the Comprehensive Land Claims Policy, not sex-discrimination in the Act.[27] In sum, the government’s “special rapporteur” seems not to exist.

The Committee’s observations reflect Canada’s recent failures to comply with its international human rights obligations. As affirmed by civil society, Canada has the resources, the human and financial capital to respect and implement international human rights.[28] Now all that remains is for Canada to comply.

Lara Koerner Yeo is a JD Candidate at the Univeristy of Toronto Faculty of Law. She is a Steering Committee Member of the Canadian Feminist Alliance for International Action and attended the Human Rights Committee review of Canada in July.

[1]    Human Rights Committee, “Concluding observations on the sixth periodic report of Canada,” UN Doc CCPR/C/CAN/CO/6, 23 June 2015, online at: OHCHR <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2fCAN%2fCO%2f6&Lang=en>.

[2]    Author’s personal notes from the Committee during its 114th session, 3176th meeting, 7 July 2015.

[3]    Ibid; Human Rights Committee, “Consideration of reports submitted by States parties under article 40 of the Covenant Sixth periodic reports of States parties due in October 2010 Canada,” UN Doc CCPR/C/CAN/6, 23 October 2013, at para 9, online: OHCHR <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2fCAN%2f6&Lang=en>.

[4]    Human Rights Committee, General Comment No. 33: The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights, UN Doc CCPR/C/GC/33, 5 November 2008, see para 19, online: OHCHR <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2fGC%2f33&Lang=en> (the OP-ICCPR allows individuals to submit complaints to the Committee alleging violations of their rights set out in the ICCPR; upon receipt of a complaint, the Committee follows the individual communication procedure provided for in the OP-ICCPR).

[5]    Human Rights Committee, Communication No. 2091/2011, Views adopted by the Committee at its 113th session (16 March-2 April 2015), UN Doc CCPR/C/113/D/2091/2011, 5 June 2015, online: OHCHR <http://www.ohchr.org/EN/HRBodies/CCPR/Pages/Jurisprudence.aspx>.

[6]    Ibid at para 9 (the federal government received the request in Ottawa 11 minutes after the claimant had been deported).

[7]    Ibid.

[8]    Ibid at para 11.

[9]    Supra note 2.

[10]  Email correspondence with Stewart Istvanffy (July-August 2015), counsel on individual complaints brought before UN treaty bodies.

[11]  Ibid; UNHR Committee, Communication No. 2284/2013 (a decision in this case is expected in October 2015).

[12]  Supra note 1 at para 5.

[13]  Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc CCPR/C/21/Rev.1/Add.13, 26 May 2004, at para 3, online: OHCHR <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2f21%2fRev.1%2fAdd.13&Lang=en>.

[14]  Ibid.

[15]  The issue of implementation features in civil society submissions to the Human Rights Committee, see in particular the 5 June 2015 Amnesty International submission to the Committee, available at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/SessionDetails1.aspx?SessionID=899&Lang=en.

[16]  Supra note 1 at para 15 (also see the Voices-Voix Dismantling Democracy report, available at http://voices-voix.ca/en/document/dismantling-democracy-stifling-debate-and-dissent-canada; Committee Member, Sir Nigel Rodley, referenced this report in his comments during the Committee’s 114th session, 3177th meeting, 8 July 2015).

[17]  Ibid at paras 6, 10, 11, 12.

[18]  Ibid at para 21.

[19]  Supra note 2.

[20]  Women’s Legal Education and Action Fund, Press Release, “Legal Strategy Coalition on Violence against Indigenous Women releases key concerns with RCMP “Missing and Murdered Aboriginal Women: 2015 Update” (29 July 2015), online: LEAF <http://www.leaf.ca/legal-strategy-coalition-on-violence-against-indigenous-women-releases-key-concerns-with-rcmp-missing-and-murdered-aboriginal-women-2015-update/> (see issue 3 “Limited data set masks RCMP failures and continues to cloud the facts”).

[21]  Supra note 1 at para 9 (also see OHCHR, Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, The situation of indigenous peoples in Canada, UN Doc A/HRC/27/52/Add.2, 4 July 2014, at para 89, online: <http://unsr.jamesanaya.org/country-reports/the-situation-of-indigenous-peoples-in-canada>).

[22]  Committee on the Elimination of Discrimination against Women, Report of the inquiry concerning Canada of the Committee on the Elimination of Discrimination against Women under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination, UN Doc CEDAW/C/OP.8/CAN/1, 6 March 2015, at para 215, online: OHCHR <http://www.ohchr.org/en/newsevents/pages/displaynews.aspx?newsid=15656&langid=e>.

[23]  Indian Act, RSC 1985, c I-5 (the “Act”).

[24]  Author’s personal notes from the Committee during its 114th session, 3177th meeting, 8 July 2015.

[25]  2009 BCCA 153, 91 BCLR (4th) 1 (also see Aboriginal Affairs and Northern Canada, “Gender Equity in Indian Registration Act”, 2013, online: AADNC <https://www.aadnc-aandc.gc.ca/eng/1308068336912/1308068535844>).

[26]  Canadian Feminist Alliance for International Action, News Release, “Sharon McIvor delivers FAFIA Statement in the UN Human Rights Committee July 6, 2015” (7 July 2015), online: FAFIA <http://fafia-afai.org/en/sharon-mcivor-delivers-fafia-statement-in-the-un-human-rights-committee-july-6-2015/> (also see Sharon McIvor’s petition on the on-going legislated sex-discrimination, currently pending with the UN Human Rights Committee, Communication No. 2020/2010, online: PHRC <http://povertyandhumanrights.org/wp-content/uploads/2011/08/Mcivor-v.-Canada-Petitioner-Comments-December-5-2011.pdf>).

[27]  See Aboriginal Affairs and Northern Development Canada, “Renewing the Federal Comprehensive Land Claims Policy” (2 April 2015), online: AANDC <http://www.aadnc-aandc.gc.ca/eng/1405693409911/1405693617207>.

[28]  Ad hoc Coalition of Canadian and International NGOs, News Release, “Canada must take action on the United Nations Human Rights Committee’s Concluding Observations released today” (23 July 2015), online: Market Wired <http://www.marketwired.com/press-release/-2041376.htm>.

By |September 21st, 2015|Blog|